Citation Nr: 1038251
Decision Date: 10/12/10 Archive Date: 10/22/10
DOCKET NO. 08-18 786 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to special monthly compensation (SMC) based on the
need for aid and attendance.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant's Representative
ATTORNEY FOR THE BOARD
S. Gorham, Counsel
INTRODUCTION
The Veteran had active service from July 1951 to September 1980.
This appeal comes before the Board of Veterans' Appeals (Board)
from a June 2007 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Boston, Massachusetts.
Due to the severity of his disability, the Veteran was unable to
attend a hearing with the undersigned in October 2009; however,
the Veteran's representative provided testimony on the Veteran's
behalf. A transcript of the hearing is associated with the
claims folder.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran is currently receiving SMC on account of one service-
connected disability rated at 100 percent disabling, with another
rated at 60 percent or more. He is currently seeking SMC based on
the need for aid and attendance.
Service connection is currently in effect for chronic obstructive
pulmonary disease (COPD) with chronic bronchitis, bilateral
hearing loss, tendonitis and bursitis of the right and left
shoulder, constipation, tinnitus, status post hemorrhoidectomy
and a low back condition.
The Veteran has two significant nonservice-connected disabilities
as well, namely dementia and posttraumatic stress disorder
(PTSD).
The Veteran was afforded a VA aid and attendance examination in
January 2006. The examiner described the severe effects of many
of the Veteran's service-connected disabilities on his daily
living, but also indicated that the Veteran's dementia was
severely disabling, requiring that he receive 24-hour care.
The Veteran subsequently submitted a December 2009 Aid and
Attendance examination report, in which the examiner indicated
that the Veteran is in need of aid and attendance of another
person, but listed both service-connected and non service-
connected conditions under the section labeled "diagnosis."
The law provides that special monthly compensation is payable to
a person who is permanently bedridden or so helpless as a result
of service-connected disability that he is in need of the regular
aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38
C.F.R. § 3.350(b) (2009). The following will be accorded
consideration in determining the need for regular aid and
attendance: Inability of a claimant to dress or undress him or
herself, or to keep him or herself ordinarily clean and
presentable; frequent need of adjustment of any special
prosthetic or orthopedic appliances which by reason of the
particular disability cannot be done without aid (this will not
include the adjustment of appliances which normal persons would
be unable to adjust without aid, such as supports, belts, lacing
at the back, etc.); inability of a claimant to feed him or
herself through loss of coordination of the upper extremities or
through extreme weakness; inability to attend to the wants of
nature; or incapacity, physical or mental, which requires care or
assistance on a regular basis to protect a claimant from the
hazards or dangers incident to his or her daily environment. 38
C.F.R. § 3.352(a) (2009).
Unfortunately, the above-cited examiners did not distinguish
between service-connected and nonservice-connected disabilities
in rendering their opinions. Once VA undertakes the effort to
provide an examination when developing a claim, VA must provide
an adequate one or, at a minimum, notify the claimant why one
will not or cannot be provided. Barr v. Nicholson, 21 Vet. App.
303 (2007). A remand is therefore required to obtain an adequate
opinion.
Additionally, the Veteran's VA treatment records should be
updated as it appears that there may be outstanding records
located at the Northampton VA Medical Center and Springfield VA
outpatient clinic.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
1. Obtain all outstanding VA treatment
records, including any that may exist at the
Northampton VA Medical Center dated after
September 2005 and the Springfield VA
outpatient clinic dated after January 2007.
Associate all records with the claims
folder.
2. After all treatment records have been
obtained, request a supplemental opinion
from the examiner who conducted the December
2009 aid and attendance examination. If the
examiner is not available, obtain an opinion
from another medical professional. If the
reviewer determines that additional
examination of the Veteran is necessary to
provide a reliable opinion, such examination
should be scheduled. However, the Veteran
should not be required to report for another
examination as a matter of course, if it is
not found to be necessary. The claims
folder must be made available to and
reviewed by the examiner. Also, provide the
examiner a list of service- connected
disabilities.
The examiner should provide an opinion as to
whether, based solely on the Veteran's
service-connected disabilities, and without
regard to any nonservice- connected
disabilities, the Veteran is in need of the
regular aid and attendance of another
person. The examiner should provide a
rationale for the opinion.
3. When the development requested has been
completed, the case should be reviewed on
the basis of the additional evidence. If
the benefit sought is not granted, the
Veteran and his representative should be
furnished a Supplemental Statement of the
Case, and afforded a reasonable opportunity
to respond before the record is returned to
the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
STEVEN L. KELLER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).